Anshe Sephard Congregation v. Weisblatt

Mitchell, J., delivered the opinion of the Court. The appeal in this case is from a decree of the Circuit Court of Baltimore City, overruling a demurrer to a bill of complaint filed by the appellee, Annie Weisblatt, against the appellant, Anshe Sephard Congregation, seeking specific performance of an alleged agreement between the parties; based upon the single exhibit filed with the bill. That exhibit is as follows: “Chevra. Kadisha Anshe Sephard Aisquith & Fayette Sts. “Anshe Sephard Congregation, Aisquith & Fayette Sts. “No. 127 Baltimore, Md., June 5, 1933. “Mr. W. Svanner, Keeper “Permit Mr.-- To dig Grave To put Tombstone Man “For Corpse Weisblatt Woman Age— Child “By order of Nathan Bagan “Chairman of Cemetery Secretary.

Undertaker” The bill alleges that the complainant is the widow of Rabbi M. N. Weisblatt, who died in the City of Baltimore some time during the month of May, .1932, having since 1912 officiated as the rabbi of the defendant congregation, ³⁹² a Jewish synagogue, and that his remains were interred in a cemetery owned and maintained by the defendant, located at Rosedalé. That subsequently the complainant, desiring to erect a mausoleum over the grave of her deceased husband, requested and obtained written permission from said congregation to do so, as evidenced by the aforegoing exhibit. That relying upon said alleged permission, the complainant made arrangements for the erection of a monument or mausoleum, but was thereafter notified by the defendant that it would not permit the complainant to proceed, and that, notwithstanding the complainant has made numerous demands upon the defendant to permit the erection of a mausoleum, said demands have been refused. The prayer for relief is to the effect that a decree be passed requiring the defendant to permit the complainant to erect a mausoleum over the grave of her deceased husband, that the defendant be required to specifically comply with its agreement to permit the complainant to erect said mausoleum, and for general relief.

In view of the variance between the contention of the appellee and the phraseology of the permit upon which her contention is predicated, it might be well to set forth the respective definitions of the words “tombstone” and “mausoleum,” before reviewing the law applicable to the facts in the instant case. In this connection Funk & Wag-nails’ New Standard Dictionary defines a “tombstone” to be: “A stone marking a place of burial, and usually inscribed with a memorial of the deceased.” The same authority defines a “mausoleum” to be: “A tomb of more than ordinary size or architectural pretentions, especially a grand monumental structure.” Giving full credence, therefore, to the force and effect of the exhibit relied upon by the appellee as authority for the erection of a mausoleum in the cemetery of the appellant, and waiving the inherent infirmities of the exhibit, in that it appears only to be a printed form, unauthenticated by the signature of any officer of the defendant congregation, silent as to whom the alleged au ³⁹³ thority to erect a memorial of any kind is given, silent as to consideration for which it was given, and lacking any reference to the erection of a mausoleum as contradistinguished from a tombstone, does it warrant the relief sought? Our answer to that query must be in the negative. In Story’s Equity Jurisprudence (2nd Ed.) sec. 1027, it is said: “The remedy of specific performance of a contract is not applied in any event as a matter of course.

It is not always a right, but rests in the sound unbiased discretion of the Court. * * * The discretion with which the Chancellor is vested is a legal, and not arbitrary, discretion. He may only exercise his discretion and deny relief when the facts are doubtful, or the contract or some of its